Judge hears arguments by attorneys for OccupyMaine and Portland

PORTLAND — A judge is expected to rule by early next week on OccupyMaine’s request for an order preventing the city from evicting the protesters from Lincoln Park.

An attorney for the protesters, who have camped out in the park for more than three months, argued in Cumberland County Superior Court on Tuesday that a round-the-clock encampment is crucial to the group’s overall message against economic disparity and moneyed interests’ influence in government.

This hearing was a precursor to OccupyMaine’s lawsuit against the city, in which it claims its activity – including the occupation of public space – is constitutionally protected political activity.

The outcome of the hearing is crucial for the future of the occupation: If Judge Thomas Warren grants the injunction sought by the group, protesters will be allowed to stay in Lincoln Park at least until their lawsuit against the city is resolved.

Lawyers for both sides said Warren is not expected to issue a ruling until late this week or possibly the beginning of next week.

During Tuesday’s day-long hearing, witnesses called by John Branson, the protesters’ attorney, included a band of photographers, OccupyMaine members and a sympathetic former member of the Cumberland County Commission.

“The tents have kept the conversation going,” Alan Porter, a member of OccupyMaine who has been camping at the park since Oct. 5, testified. “It’s the symbol of our movement. … Without the park, we don’t have a presence.”

Malory Shaughnessy, a former county commissioner who works for the progressive activism website commondreams.org, said she sympathizes with the occupiers’ pluralistic “99 percent” rhetoric, but that she has never personally occupied Lincoln Park.

Shaughnessy said the encampment, near the busy intersection of Franklin and Congress Streets, is integral to OccupyMaine. Without it, she said, no one would have paid any attention.

“The reason (the protests) took hold is because of the 24/7 presence,” she said. “Symbolically, you think of Hoovervilles. … It’s a way of expressing that our system isn’t working, that people are being thrown out of their homes.”

Branson argued in his closing arguments that the rights of speech and assembly are enshrined “for people like these,” and that Maine’s Constitution protects the activities of OccupyMaine even more broadly than the U.S. Constitution.

He said the city illegally used an anti-loitering ordinance to try to evict the protesters, impinging OccupyMaine’s First Amendment rights in the process. He also said that in establishing a “General Assembly,” the protesters were creating government, a right protected by the state Constitution.

“The democracy these people are trying to create requires an ongoing presence,” Branson said.

He also argued that OccupyMaine’s case is different than others because the Portland group is not demanding to stay in Lincoln Park, but that some public space be made available for 24/7 protest.

In Boston, for example, an Occupy group was told they couldn’t stay in Dewey Square, but could protest around the clock in the Harbor Islands.

Mark Dunlap, the attorney hired to represent the city, said this case is just like every other Occupy case, and that just as every other court has ruled, the city is within its rights to impose time, place and manner restrictions on OccupyMaine’s protest activity.

Citing an increase in arrests at Lincoln Park since the occupation began, he said the city is concerned about safety in the park and fears someone could die of hypothermia.

Dunlap called city employees and one elected county official as witnesses, to make the case that OccupyMaine’s activity is “the takeover of a public space.”

“When they first came in, I’d see a lot of people,” Cumberland County District Attorney Stephanie Anderson testified. “As time went on, there’s been less and less activity. … For the past couple months, it’s looked like a municipal dump.”

Barbara Brewer, a corporation council administrative assistant for the city, said she feels unwelcome in the park. She referred to a banner that said, “Step lively, citizen: You are entering an occupied zone.”

“(That sign gave me) the feeling that people not associated with OccupyMaine were unwelcome,” she said.

Janice Hackett, a victims advocate for the Portland Police Department, said that prior to the occupation she would often take her lunch breaks in Lincoln Park, sit on the benches and read or just take a walk.

She said she doesn’t do that anymore.

“My reasons for going were to have peace and quiet and enjoy the scenery,” she said. “So it’s not very welcoming for me now.”

Dunlap produced several permits obtained by OccupyMaine for events, all of which took place outside Lincoln Park. That made clear, he argued, that camping in the park is not essential to the group’s activities.

The evidence “leads to the idea that Lincoln Park is for living and other areas are for demonstrating,” he said in his closing remarks.

After court adjourned, Branson said his clients have not decided whether they will pursue their lawsuit if the judge denies their request for an injunction.

If the camp is dismantled, he said, winning the lawsuit won’t serve much good.

“We want the court to affirm that these people have rights,” he said. “Other than that, we haven’t thought that far ahead.”